Lokpal Bill...Understanding the Drafts of Government and Civil Society

Civil Society’s Draft

Government’s Draft

Government’s Lokpal Mockery of Criminal Jurisprudence?

After Preliminary Enquiry

Accused given a Hearing before filing an FIR

to explain why an FIR should not be registered against him.

If during investigations, any new persons emerge involved

they too would be presented with evidence against them & given hearing

After completion of investigations,

presented evidence & again given a hearing

to explain why a case should not be filed in the court

[Section 23, 24 of Govt Bill]

???

Government’s Draft

Government’s Lokpal

Sympathetic to the Corrupt rather than Citizens?

Complain against a government officer’s corruption to Lokpal

[Section 50,51 of Govt Bill]

Can file a Cross Complaint directly to the Special Court without Preliminary Enquiry that whether complain was frivolous

Given free advocate

Has to defend himself in court

If complain proved frivolous gets

minimum 2 years jail !!!

If corruption proved gets minimum 6 months jail

A Corrupt Government Officer A Citizen

Government’s Lokpal

Does not cover all those who may be corrupt…

But covers all those who may raise a voice against corruption?

All NGOs, Societies, Trusts ,even unregistered at the grassroots

[Section 17 (1) (e) of Govt Bill]

Jurisdiction

Only 65,000 out of total 1.2 crore Govt employeesOnly Group A Central Govt employeesNo lower Bureacracy

0.05 % 100%

Government’s Draft

Critical Issues – Selection of Lokpal Members

Jan Lokpal Draft Government’s Draft

Government’s will be able to appoint its own Lokpal members & Chairperson.

Earlier agreed to Selection committee, Selection process,

Disagreement only on composition of Search committee –

(Joint Committee meeting, 7th May)

Broad based selection committee

2 politicians, 4 judges & 2 independent

constitutional authorities.

• Independent Search

committee

• Detailed transparent selection process

with PUBLIC

PARTICIPATION

• 5 out of 10 members from

ruling government

• Search committee to be

selected by Selection

committee itself

• No clear selection process

provided

Government’s Draft – Selection Committee

Civil Society’s Draft – Selection Committee

Government’s Draft – Search Committee

Civil Society’s Draft – Search Committee

Critical Issues

Jan Lokpal Draft Government’s Draft

Financial Independence

Delegation of Powers

• Lokpal 11 members collectively will decide how

much budget do they need

Finance ministry will decide the quantum of budget

• Lokpal members will only hear cases

against senior officers and politicians

or cases involving huge amounts.

• Rest of the work will be done by

officers working under Lokpal

All work will be done by 11 members of Lokpal.

Practically no delegation.

Critical Issues – Accountability(Lokpal Members)

Jan Lokpal Draft Government’s Draft

Both Selection and Removal of Lokpal in Government’s control

Puppet in government’s hands

• Accountable to the PEOPLE

• Any Citizen can make a complaint to

Supreme Court and seek removal.

• Judicial review over the actions of the

Lokpal by the High Courts under Article 226

and the Supreme Court under Article 32 &

136

Accountable to the Government. Only government can seek removal of Lokpal

Critical Issues – Accountability(Lokpal Staff)

Jan Lokpal Draft Government’s Draft

Complaint against Lokpal staff will be

heard by an independent authority

Lokpal itself will investigate complaints against its own staff,

thus creating serious conflicts of interest

Government’s Lokpal is accountable Either to ITSELF or the GOVT.

We suggested accountability of Lokpal Directly to PUBLIC

Critical Issues – Merge CBI

Jan Lokpal Draft Government’s Draft

Anti-corruption branch of CBI

should be merged into Lokpal

Government wants to

retain its hold over CBI.

CBI misused by government for political motives

Recently, govt exempted CBI from RTI

• What happens to the cases pending with CBI?

• If same complaint made to both Lokpal & CBI?

• If CBI is doing a dishonest investigation, can Lokpal call for the file from CBI

midway?

• Annual budget of CBI - 300 crores, no less!

Critical Issues

Jan Lokpal Draft Government’s Draft

Prevent ongoing Corruption

Tap Phones

Lokpal will have a duty to take steps to prevent corruption in any ongoing activity, if brought to his notice. If need be, Lokpal will

obtain orders from High Court.

No such duties & powers of Lokpal

Lokpal bench will grant

permission to do so

Home Secretary

would grant permission

2G is believed to have been known while the process was going on. Shouldn’t some agency have a duty to take steps to

stop further corruption rather than just punish people later?

Critical Issues

Jan Lokpal Draft Government’s Draft

Dismissal of Corrupt Government Servant

Punishment

• After completion of investigations, in addition

to filing a case in a court for prosecution, bench

of Lokpal will hold open hearings & decide

whether to remove the government servant

from job.

The minister will decide whether to remove a corrupt officer or not.

Often, Ministers are beneficiaries of corruption of senior officers

• Maximum punishment life imprisonment

• Quantum of punishment with rank

• Higher fines for accused business entities

• If successfully convicted, a business entity

blacklisted from future contracts.

None of these accepted. Only maximum punishment raised to 10

years.

Critical Issues – Grievance Redressal

Jan Lokpal Draft Government’s Draft

If an officer does not do a COMMON MAN’s

work in prescribed time &

Violates CITIZEN’S CHARTER - Penalty

imposed & is deemed corruption.

No penalties proposed. So, this will remain only on paper

Government had earlier agreed to it!(Joint committee meeting, 23rd May)

Unfortunately have gone back on this decision.

Civil Society’s Draft –Grievance Redressal

Critical Issues – Whistleblower Protection

Jan Lokpal Draft Government’s Draft

• Lokpal will be required to

provide protection to

whistleblowers, witnesses & victims of corruption

No mention in this law.

Protection for whistleblowers is being provided through a separate law.

That law so bad - Trashed by Standing Committee of Parliament –

headed by Ms Jayanthi Natrajan.

Earlier agreed that Lokpal would be given the duty of providing protection to

whistleblowers under the other law, & that law would also be discussed &

improved in Joint Committee only

(Joint Committee meeting, 23rd May)

Critical Issues – MPsJan Lokpal Draft Government’s Draft

Lokpal should be able to investigate allegations that any MP had taken bribe to vote or speak in Parliament

Government has excluded this from Lokpal’s purview.

• Article 105(2) gives them Freedom to Vote or Speak in Parliament,

Not Freedom for taking Bribe for doing so!

• Self – regulation an oxymoron – No MP convicted ever!

• Recommendation by National Commission to review

the Working of the Constitution, set up in the year 2000

Critical Issues – Prime MinisterJan Lokpal Draft Government’s Draft

• Lokpal to have power to

investigate allegations of

corruption against PM.

• Special safeguards provided against

frivolous & mischievous complaints

PM kept out of

Lokpal’s purview.

• No immunity to PM, only President as per our constitution to maintain ‘stability of state’

• Corruption by PM can be/has been investigated, under Prevention of Corruption Act

• If PM exempted, then all offices/ministries under PM also exempt

• Lokpal not “above” PM just as a Group B Income Tax officer checking his IT returns

isn’t

• Flip flop in government’s own position

Critical Issues – Judiciary

Jan Lokpal Draft Government’s Draft

• Lokpal should have power

to investigate allegations of

corruption against Judiciary.

• Special safeguards provided

•against frivolous & mischievous complaints

Judiciary kept out of Lokpal’s purview.

Government wants it to be included in Judicial

Accountability Bill (JAB)...

Critical Issues – JudiciaryJudicial Accountability Bill (JAB), drafted by the government:

• Does not talk of bribery by the judges – only “misbehavior”

• Permission to enquire against a judge will be given by a

3 member committee, 2 judges & a retired Chief justice

of the same court

• National Oversight Committee, to be created through

JAB will not have police and investigative powers, which Lokpal would have.

Therefore, the two bills complement each other.

Even if judicial corruption were included in JAB, not clear when would an

effective JAB be enacted?

Critical Issues

Jan Lokpal Draft Government’s Draft

Amendments to CrPC

Special Benches in High Court

On the basis of past experience on why anti-corruption cases take a long time in courts and why do our agencies lose them, some

amendments to CrPC have been suggested to prevent frequent stay orders.

Not included

High Courts will set up special benches to

hear appeals in corruption cases to fast track them, as a study shows it takes 25 years for

appeal process typically.

No such provision

Critical Issues – Lokayukta

Jan Lokpal Draft Government’s Draft

• The same bill should provide for

Lokpal at centre and Lokayuktas in

states

Only Lokpal at the centre would be created through this Bill.

According to Mr Pranab Mukherjee, some of the CMs have objected

State Information Commissions were also set up under RTI Act

through single Act only.

A Lokpal to Protect Corruption?Or

A Lokpal to Prevent Corruption??

Let us not let down the people of the country!